From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
the consumer in the cultures and traditions of the Nation State allows for the foregoing discussion to be
Within many national systems, the liberal conception of both the State and market, alongside the limited
appreciation of law’s role in society, provided little leeway for the recognition of divergent standards of
protection for contracting parties. The role of law and its influence on society can be considered first, via
two broad, while not necessary representative, views on this relationship. The first, elaborating on scholar-
ship from Durkheim to Luhmann,35 posits that law plays a key role in resolving problems associated with
complexity in society; while society is deemed to be ‘without centre or apex’,36 the State’s role in society
remains ‘historically embedded and contingent’. Thus law provides a framework, established at the level
of society and reflecting its changes, on the basis of which behaviour is shaped, relevant to the context in
which individuals are acting.37 The second approach reflects a cynicism as regards such an understanding
of law, considering that it operates in the background of society, without playing a prominent role in the
organisation or living of life.38
As a result of a degree, though not necessarily entire, adherence to the latter understanding, particular con-
tracting parties were not deemed to require specific protection, providing no basis for the characterisation
of an individual as a ‘consumer’. The shift in paradigm from status to contract39 entrenched this understand-
ing in contract law. Moreover, the strict adherence to the ideal of contractual equality, enshrined in con-
tract’s formal understanding (contrasted with its later materialisation),40 provided little foundation for the
categorisation of contracting parties into different groups that might have to be treated differently should a
dispute arise. Inherent in this understanding is the conceptualisation of private law as a technical, apolitical
body of law with little or no social function. As contract’s materialisation emerged, mechanisms for the pro-
tection of contracting parties also evolved in the national legal orders, notwithstanding that now consumer
protection is often understood as predominantly European; against this background, nationally-embedded
consumer cultures, and thus potentially identities, emerged existing alongside ‘notions of national citizen-
ship’, within and across the national markets, reflecting the similarities and differences therein. Indeed, it
was understood that ‘national regulation and law would dictate the mode of national production, the extent
and character of goods and services on offer within that market, as well as the terms and conditions under
which such goods and services might or might not be purchased’.41
Thus, due to its emergence in context, the formal conceptualisation of consumer might differ across
national legal systems; moreover, empirical research indicates that ‘national cultural variation’42
impacts consumer culture generally, and consumer behaviour, including responses to information43 and
35 That is, in terms of the concept of functional differentiation: the demand for law from the social, Émile Durkheim, The Division of
Labor in Society (WD Halls trans., Free Press 1984); ‘What is, then, the practical cause of the genesis of law? It is, replies the author,
the need to guarantee the conditions of existence of society’: Émile Durkheim, ‘La science positive de la morale en Allemagne’,
(1887) 24 Extrait de la Revue Philosophique, 33–142; 275–284 (English translation, ‘Jurists?’ (1986) 15 Economy and Society 346,
348–349); Niklas Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp Verlag 1997).
36 Niklas Luhmann, Political Theory in the Welfare State (J Bednarz Jr trans., de Gruyter 1990).
37 Niklas Luhmann, A Sociological Theory of Law (Routledge 1985) 105; Peer Zumbansen, ‘Transnational Comparative Theory and
Practice’, Osgoode Hall Working Paper 1–2012, 12.
38 In the context of business contract relations, see Stewart Macauley, ‘Non-Contractual Relations in Business’ (1963) 28 Am.Soc.Rev. 55.
39 Henry S Maine, ‘From Status to Contract’ in Ancient Law (Murray 1861).
40 Materialisation is understood broadly to reflect the drafting of norms for a particular purpose. Its trends were discussed in Weber’s
analysis of legal systems Max Weber, Economic and Sociology, Vol.II (G Roth and C Wittig edn, Berkeley Press 1969); notwithstand-
ing, the development of the discourse, between the formalists, promoting the maintenance of the autonomy of law, in respect of
political and social concerns, and those promoting an understanding of law, incorporating concerns as to social justice arising in
modern society, really came to the fore with critical legal scholarship.
41 Michelle Everson, ‘Legal Constructions of the Consumer’ in Frank Trentmann (ed), The Making of the Consumer: Knowledge, Power
and Identity in the Modern World (Berg 2006) 99–121, 107.
42 Often in cross-cultural analysis, Hofstede’s dimensions of national culture are employed: a) power distance (the manner in which
inequality is dealt with); b) uncertainty avoidance (how uncertainty is dealt with); c) individualism and collectivism (the individual/
collective relationship); d) masculinity and femininity and e) long-term versus short-term orientation: Geert Hofstede, Culture’s
Consequences: Comparing Values, Behaviours, Institutions and Organizations Across Nations (2nd edn, Sage Publications 2001). It
has also been recognised that this framework for analysis might be useful in the European context: Marieke de Mooij, Consumer
Behaviour and Culture: Consequences for Global Marketing and Advertising (Sage Publications 2004) 36.
43 The CJEU has referred to the definition of the consumer per ‘social, cultural and linguistic factors’. Wilhelmsson has argued for
greater consideration of the cultural in particular: Thomas Wilhelmsson, ‘The European Average Consumer – a Legal Fiction?’ in
Thomas Wilhelmsson et al (eds), Private Law and the Many Cultures of Europe (Kluwer 2007) 243–268.